RECEIVED
CLERK’S OFFICE
JUN
2 92001
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
STATE
OF
ILLINOIS
Pollution Control Board
IN THE MATTER OF:
PROVISIONAL VARIANCES FROM
WATER TEMPERATURE STANDARDS:
PROPOSED NEW 35111. Adm. Code 301.109
)
RO1-31
)
(Rulemaking
—
Water)
)
)
)
)
NOTICEOF FILING
PLEASE TAKE NOTICE
that I have today filedwith the Office ofthe Clerk ofthe
Pollution Control Board the ANSWERS of the Illinois Environmental Protection Agency,
a
copy ofwhich is herewith served upon you.
See attached Service List.
ENVIRONMENTAL PROTECTION AGENCY
OF THE STATE
OF ILLiNOI
By:
Deborah J. WilliaMs
Assistant Counsel
Division of Legal Counsel
DATED:
June 28, 2001
Illinois Environmental Protection Agency
1021 North GrandAvenue East
Post Office Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
THIS FILING
IS SUBMITTED ON RECYCLED PAPER
RECEIVED
CLERK’S
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUN
29
2001
STATE OF ILLINOIS
Pollution
Control Board
IN THE MATTER OF:
)
)
RO1-31
PROVISIONAL VARIANCES FROM
)
(Rulemaking
-
Water)
WATER TEMPERATURE STANDARDS:
)
PROPOSED NEW
35
Ill. Adm.
Code 301.109
)
)
ANSWERS OF THE ILLINOIS
EPA
NOW COMES the
ILLiNOIS ENVIRONMENTAL PROTECTION AGENCY
(“Illinois
EPA” or “Agency”), by andthrough one ofits attorneys, Deborah J. Williams, pursuant to the
Hearing Officer Order dated June
13, 2001, and hereby respectfully submits to the Illinois
Pollution Control Board (“Board”)its Answers to the additional questions for the Illinois EPA
filed by the Illinois
Environmental Regulatory Group (“IERG”) on June
15,
2001.
The Illinois
EPA’s responsesare as follows:
1.
Regarding Section 301.109(a), what is the rationale for including the contents of
the “application” in the Agencyrecommendation?
ANSWER:
The Illinois EPA discussed its
rationale in including the contents of the
provisional variance application in its provisional variance recommendation at the July 7,
2001
hearing.
See
June 7, 2001
Hearing Transcript, pp.
22-23. The Illinois
EPA believes
this requirement will help explain the conclusion the Agency reached regarding an
individual application and provide advance notice
to potential thermal provisional
variance applicants of the type of information the Illinois EPA will be looking for in
analyzing their applications.
a.
Is this “inclusion” in addition to a discussionofthe items
in
301.109
(a)(1), (2), and (3)?
ANSWER:
Yes.
b.
Or~ is
itjust that the information included in the application will be
used to
prepare paragraphs (a)( 1 )-(3) in the Agency’srecommendation?
ANSWER:
In addition to being discussed individually, it is anticipated that the
contents ofthe provisional variance application will be a primary source used by the
Illinois EPA to develop its response to the informational requirements ofproposed
301.109(a)(1) —(3).
2.
What “other rules” are the Agency referring towhen it refers to water temperature
standards “set forth in 35
Ill. Adm.
Code 302.211
or 303 or any other rule?”
ANSWER:
The Illinois EPA did not contemplate any particular additional rules when
it refers to”302.211, 303
or any other rule.”
This
language was included to provide
flexibility and address any other applicable thermal limitatiQn whether found in a state,
federal, or site-specific requirement currently in effect or adopted in the future.
3.
Does the Agency believe that all ofthe 180.202(b) information should be required
even in those instances when an applicant submits a provisional variance
application pursuant to the emergency provisions contained in Section
180.204?
a.
Ifyes, how do you reconcile that with the
clear language of 180.204
regarding emergencies? What is the purpose ofemergency petitions?
b.
Doesn’t this, ineffect, eliminate the ability to have provisional variances
on an
emergency basis for thermal dischargers?
ANSWER:
In both emergency and standard provisional variance applications, there
might be information listed in 180.202(b)that
is not applicable to a particular situation.
The Illinois EPA does not demand the submission ofinformation listed in 180.202(b) that
is not applicable to a given facility.
2
The procedures provided for Emergency Applications in 35 Ill. Adm. Code
180.204
differ in one respect from the typical provisional variance process. Under
Section
180.204, when the emergency circumstances contemplated by that provision
exist, the Agency may obtain information over the telephone from provisional applicants
and begin its investigation and recommendation process prior to (or in appropriate
circumstances in the absence of) receiving written information from the applicant.
The
purpose ofthe emergency application provision is to
allowthe Illinois EPA to proceed
without written information where its independent investigation reveals sufficient facts,
or to require the submission of some or all
ofthe information required by
180.202(b) in
writing to follow within 10 working days. As a practical matter, the Agency generally
requests emergency applicants follow up their telephone notification with a written
explanation that typically includes the same information as a 180.202(b) application.
Applicants usually provide this information in much less than
10 business
days.
Though
Part 180 provides the Agency authority to proceed with making
a recommendation in
emergency circumstances, based upon the results ofits
own investigation,
in nearly all
cases
it is necessary for the facility to provide some type ofwritten documentation that
the facts they have described over the telephone are accurate.
In addition,
sincethe Illinois EPA customarily submits provisional variance
recommendations to the Board two times per month, to coincide with scheduled Board
meetings, provisional variance orders are typically dated to provide the appropriate relief
that is justified by the circumstances and the time limitations in the statute.
This method
ofsubmitting
recommendations so they arrive two days prior to a scheduled Board
meeting means that the emergency application provisions of 180.204 have little practical
3
effect.
Even if the Illinois EPA were to make a determination to recommend the grant of
a provisional variance the same day it is notified ofan emergency circumstance,
the
recommendation will not generally be filed with the Board until
its next meeting;
therefore, the Illinois EPA is typically able to wait for receipt ofa 180.202(b) application
from the facility prior to filing its recommendation. Nothing in the additional
requirements for an Illinois EPA recommendation to the Board under the proposed
301.109 should interfere with emergency application process as it currently
is
implemented.
c.
Do emergencies never exist for thermal disehargers?
ANSWER:
Of course, thermal dischargers may encounter an emergency circumstance
that might require provisional variance relief from an absolute maximum effluent
temperature
limit.
However, the typical thermal provisional variance might differ in
terms ofthe amount oflead time, a discharger might have to address the circumstance
giving rise to the provisional variance.
The vast majority ofthermal provisional
variances are not granted from the absolute maximum temperature limit, but from the
number ofdays a facility is allowed to discharge between a lower maximum limit and its
absolute maximum limit.
Forexample, a permit limitation might provide that the
permittee’s discharge can only exceed 90 degrees on
1
percent ofthe days ofthe year on
a rolling average and can never exceed 93 degrees.
Therefore, typically, a thermal
discharger will have advance notice that it is in danger of exceeding this lower limit
based
on the number of days the temperature ofits effluent has been over this lower
maximum limit during the preceding
12 months.
4.
Regarding Section 301.109(a)(1), do the current applications contain enough
information to allow the Agency to fulfill its responsibility under this provision?
4
a.
If so, please explain what is provided in the application that would allow
the Agency to fulfill its responsibility.
b.
Ifnot, what additional information and effort will be required ofthe
Agency, and how long will ittake to gather the necessary information?
c.
On whom will the Agency rely forthis additional information, the
applicant or other information sources, and what would those other
sources be?
ANSWER:
Subsection 301.1 09(a)( 1) requires the Agency to “identify the extent to
which the arbitrary and unreasonable hardship results from weather and operational
conditions.” The Environmental Protection Act (“Act”) requires the Agency to
recommend the grant of provisional variances to the Board where it finds that compliance
on a short term basis poses an arbitrary or unreasonable hardship.
In addition, Section
1 80.202(b)(7) requires submittal of information identifying the nature ofthe hardship.
Therefore, there must be information in the application which allows the Illinois
EPA to
determine the nature ofthe hardship, and Section 301.1 09(a)(1) only requires additional
breakdown by the Agency about the nature ofthe hardship as it relates to weather and
operational conditions.
5.
Regarding Section 301.109(a)(2), do the current applications contain enough
information to allow the Agency to fulfill its responsibility under this provision?
a.
Ifso, please explain what is provided in the application that would allow
the Agency to fulfill its responsibility.
b.
Ifnot, what additional information and effort will be required of the
Agency, and how long will it take to gather the necessary information?
c.
On whom will the agency rely for this additional information, the
applicant or other information sources, and what would those other
sources be?
5
ANSWER:
Pursuant to proposed 301.109(a)(2), the Illinois EPA’s recommendation
must “explain why the conditions in subsection (a)( 1) ofthis
Section were not reasonably
foreseeable based on historical weather patterns and predictable-operational
conditions.”
Currently, when an applicant relies on unusual weather or operational conditions to
demonstrate arbitrary and unreasonable hardship, the applicant sometimes
submits the
information necessary to respond to Section 301.1 09(a)(2).
The Illinois EPA anticipates
that this proposal will result in more complete applications in the future by providing
notice to applicants regarding the type ofinformation the Agency will be trying to
derive
from theirprovisional variance applications and will allow applicants the opportunity
to
submit available information regarding unusual weather patterns and operational
conditions to support the claim ofarbitrary and unreasonable hardship.
The Illinois EPA
does not know of any specific
sources ofadditional
information on which it will rely to
conduct its investigations under this provision, but as it does currently, the Illinois EPA
will seek out additional expertise from other agencies and experts whenever necessary to
make a determination.
6.
How does the Agency plan to make a foreseeability determination?
a.
Ifthe weather conditions during the summer of 1999 were to repeat
themselves tomorrow, would those conditions be reasonably foreseeable?
ANSWER:
A foreseeability determination is one element of the balancing test the
Illinois EPA conducts when determining whether there is an arbitrary and unreasonable
hardship present, or whether the applicant had an opportunity to come into compliance or
apply for a regular variance.
Where foreseeable conditions would lead to thermal loading
to a water body that would be
out of compliance with the Board’s water qualitystandards
or an NPDES permit,
a discharger is expected to provide adequate cooling
capacity to
address those conditions.
In recent years
the electric
utility industry has developed computer models that
are able to perform sophisticated forecasting ofthe thermal conditions that would result
from various weather conditions and levels of power demand. It is
expected that
6
facilities will use this information to assist in their compliance with the Board’s
regulations and that the Illinois EPA can use this type ofdata to determine weather the
conditions at issue were foreseeable.
With regards to the conditions ofthe summer of 1999, the Illinois EPA believes
that the duration ofthe extended heat wave in that summer was not foreseeable at the
time, but is hopeful that this proposal will encourage additional planning to provide for
electrical generation during similar conditions without the need for provisional variances.
b.
How, in the Agency’sview, does foreseeability relate to arbitrary or
unreasonable hardship?
ANSWER:
Ifa condition that’resultsin the need for a provisional variance was
foreseeable, the applicant is expected to take steps to avoid the need for such relief.
Ifthe
applicant does not address conditions ofpotential non-compliance that are reasonably
foreseeable, the hardship the applicant experiences is considered self-imposed.
Generally, self-imposed hardship has been found by the Board and the Agency as an
insufficient basis for regulatory relief.
However, in certain extreme cases, the Board has
found a sufficient danger to public health and
safety to exist to justify regulatory relief
even where the hardship is self-imposed (or foreseeable).
See,
City Wyoming v. Illinois
EPA, PCB 84-032 (8/2/84)(danger to public health from sewer back-ups outweighs
City’s self-imposed economichardship)
and Department ofthe Army (Savannah Army
Depot) v.
Illinois EPA, PCB
85-143
(September 20,
1985)(Board granted provisional
variance only to protect public
from the danger from explosive wastes, not based on the
Army’s self-imposed hardship createdby thefailure to perform an adequate inventory).
c.
Would
the proposed rules have the effect ofproviding a basis for denying
a provisional variance request based on the Agency’s determination that
the weather conditions were “reasonably foreseeable?”
ANSWER:
To the extent the weather conditions at issue were foreseeable and were
ignored, an applicant greatly increases the chances its provisional variance request will be
7
denied. The proposed rules provide the flexibility to grant provisional variances in
appropriate situations including
some situations where the relevant weather conditions
are reasonably foreseeable, but other factorsjustify the granting of a provisional variance.
To the extent foreseeable weather conditions
formed the sole basis for the claimed
hardship, this has been and will continue to be a basis for denying the request.
7.
Regarding Sections 301.109(a)(3), why has the Agency included a provision
seeking information regarding five year historical data?
ANSWER:
This provision does not askthe applicant to provide
5
years ofdata, it only
asks the Agency to identify this information in its recommendation. This is intended to
require additional investigation by the Illinois EPA to provide an opportunity to discover
patterns and repeat provisional variance requesters in order to identify whether
insufficient cooling capacity might be
an issue at a particular facility.
a.
Is this datato be a determinant in the granting or denial ofa provisional
variance?
ANSWER:
No.
Ifan applicant otherwise qualifies for a provisional variance, the
request should not be
denied based solely on the fact the same facility was granted a
provisional variance four or five years earlier.
b.
If so, what is the statutory basis for this type ofrestriction?
ANSWER:
This provision establishes an informational requirement on the Illinois
•
EPA to present the Board with the history ofthe facility at issue.
8.
Regarding Section 301.109(b)(2), is
it the intent ofthis proposal to require that
the Agency recommend the imposition ofall of the listed
conditions on every
provisional variance unless the Agency justifies otherwise? Ifso,
a.
Please discuss why each condition should be applied in all cases.
8
b.
Please explain why the language requires the Agency to explain what
actions
it did not take rather than the actions it did
take.
c.
Can the Agency identify any other case in which it is required to defend an
action that it did not take (in the context of an approval; not a permit
denial)?
ANSWER:
Yes.
The Illinois EPA intends that the conditions presented are the
minimum appropriate conditions in most types of thermal provisional variances.
In those
cases where one or more ofthese conditions
is not appropriate, it is useful forthe Illinois
EPA to explain why the condition is not appropriate in that particular case.
In addition,
the Illinois
EPA is required by this proposal to
explain its rationale for imposing
additional conditions beyond those provided in Section
301 .109(b)(2).
Other instances in
which the Agency defends its action or inaction are not relevant to this proceeding.
d.
Why is it not appropriate to reverse the language to explain why a
condition was added rather thanwhy it was not added?
ANSWER:
It is not clear what proposed alternative language this question
contemplates, but the Illinois
EPA welcomes the submission by the public ofalternative
language to the Agency’s proposal that addresses thisor any other issue.
e.
What level ofjustification must the Agency provide when recommending
that a specific condition not be imposed?
f.
Mustthe Board accept that level ofjustification?
ANSWER:
This provision does not require the Illinois EPA to present ajustification,
but rather to provide the Board and the applicant with an explanation ofthe conditions
imposed or why the presumptive conditions were not imposed.
9.
Regarding Section 301.109(b)(2)(A), is this a condition that
is currently imposed
in thermal provisional variances?
9
ANSWER:
Yes.
See,
e.g.
Commonwealth Edison Company (Dresden Power Station
v.
Illinois EPA, PCB 00-48 (September 23,
1999), PCB 00-18 (August
5,
1999), PCB 99-
39 (September 3,
1998), PCB 99-7 (July 23,
1998) and PCB 98-20 (July 24.
1997);
Commonwealth Edison Company (LaSalle Generation Station) v. Illinois EPA, PCB 00-
19 (August
5,
1999); Kincaid Generation v.
Illinois EPA, PCB 00-20 (August
5,
1995);
Commonwealth Edison Company (Fisk, Crawford, Will County and Joliet Generating
Stations) v. Illinois EPA, PCB
96-5
1
(September 13,
1995), PCB 96-26 (August 3,
199.5)
and PCB 95-183 (June 25, 1995).
10.
Please explain the need for, and feasibility of, requiring continuous monitoring of
the receiving water.
a.
Is this currently being done by all potentially affected facilities?
b.
Ifnot,
what type of facilities currently do so?
c.
What would be the cost and feasibility ofadding such monitoring for a
provisional variance if it is not currently undertaken by the facility?
ANSWER:
Continuous monitoring is intended to monitor the impact of the provisional
variance on the receiving water and evaluate compliance with water quality
standards.
It
is not currently being done by all potential affected facilities, though large power utilities
located on receiving waters with significant or critical thermal loads
are required to do
this as part oftheir National Pollutant Discharge Elimination System (“NPDES”)permit.
The technology to conduct such monitoring is readily available; however, the cost and
feasibility may vary on a case-by-case or site specific basis.
11.
What is the need for inspection ofthe intake area?
ANSWER:
The
intake area is inspected to monitor any impact the emergency operation
may have on fish impingement or entrainment.
12.
What does the Agency intend by requiring inspections three times daily?
10
a.
Will this require nighttime inspections?
b.
What level ofeffort would be required at such inspections to determine
mortality?
ANSWER:
Visual inspections (e.g.,
drive by or walk by) are being required to
observe
unusual conditions including mortality to fish or other aquatic life.
The Illinois EPA has
determined through experience that thrice daily inspections assure that a good portion of
the day does not pass without the discovery ofa problem that may exist, without being
overly burdensome on the facility performing the inspections.
The proposal does not
require that inspections be performed at night.
13.
Regarding Section 301.109(b)(2)(B), is this a condition that is currently imposed
in thermal provisional variances?
ANSWER:
Yes, with the exception ofthe requirement to submit documentation to the
Department ofNatural Resources (“DNR”).
See e.g.,
Commonwealth Edison Company
(Dresden Power Station)
v. Illinois EPA, PCB 00-48 (September 23,
1999), PCB 00-18
(August
5,
1999), PCB 99-39 (September 3,
1998), PCB 99-7 (July 23, 1998) and PCB
98-20 (July 24,
1997); Commonwealth Edison Company (LaSalle Generation Station) v
Illinois EPA, PCB 00-19 (August
5,
1999); and Kincaid Generation v. Illinois EPA, PCB
00-20 (August
5,
1995).
14.
Please explain what the Agency means by “document environmental conditions.”
a.
What level and types ofactivities are expected?
ANSWER:
This condition provides for record-keeping and reporting ofthe
monitoring activities undertaken to evaluate the secondary impacts
on the aquatic
ecosystem or other designated uses ofthe water body.
At a minimum, this will include
11
documentation regarding the continuous temperature monitoring and visual inspections
required by Section 301.1 09(b)(2)(A).
15.
What actions will the Agency take to assess the adequacy of the information
submitted?
a.
What occurs if the Agency (orthe Board) is not satisfied with the
submittal?
b.
Can either the Agency or the Board request additional information?
What, if any,
appeal rights are anticipated?
ANSWER:
The
Illinois EPA will enter into consultation with the provisional variance
recipient to remedy any perceived inconsistencies in the information submitted consistent
with its obligations
and authority under the Act.
Ifthe submittal pursuant to this
condition is
confusing or inadequate, the Illinois EPA can request additional information
from the provisional variance recipient. There is no need for appeal rights to this
condition.
Ifthe Illinois EPA determinesthat a provisional variance recipient has
violatedthe terms ofa provisional variance, the proper
course ofaction for the Agency to
pursue would be to evaluate the merits ofan enforcement action against the facility.
16.
Regarding section 301.109(b)(2)(C), is this a condition that
is currently imposed
in thermal provisional variances?
ANSWER:
Yes, with the exception ofrequiring the submittal of documentation to
DNR, this condition has been imposed on occasion.
See, e.g.,
Commonwealth Edison
Company (Dresden Power Station) v.
Illinois EPA, PCB 00-48 (September 23, 1999) and
PCB 00-18 (August
5,
1999).
17.
Please explain what the Agency means by “immediately implement.”
ANSWER:
The Illinois EPA intended this phrase to mean to undertake
as soon as
practicable.
12
18.
Please explain what the Agency means by “biological activities.”
a.
Would they vary among different habitats and different situations?
b.
What types ofplans would an applicant have to submitto demonstrate that
it was prepared to “implement biological activities?”
c.
What type ofreview would the Agency need to determine whether the
plans are adequate?
d.
Can this be done within the context ofthe time frame for a provisional
variance?
Of an emergency provisional variance?
ANSWER:
Biological activities refers to physical or other biologically related
monitoring and management activities.
It is likely these activities would vary among
habitats and water bodies.
The review ofthe documentation submitted pursuant to the
condition contained in Section 301.109(b)(2)(C) would
be handled in the same manner as
the documentation required pursuant to the condition in Section 301.109(b)(2)(B).
See
response to Question #
15 above.
Although it might be desirable to document certain
biological conditions prior to the onset ofthe provisional variance period, this condition
is intended to require biological monitoring or management activities to begin on the
effective date of the provisional variance or the onset ofthe provisional variance
activities. The monitoring or management activities must continue during the term of the
provisional variance with submittal of documentation ofsuch activities to occur within 30
days after the expiration ofthe provisional variance, not before or during the provisional
variance.
19.
This provision requiresthe applicant to “characterize how aquatic life respond[s]
to the thermal conditions.” What will the characterization be compared to?
a.
How will this response to thermal conditions be measured?
b.
How would this requirement differ from the requirements contained in
Section 301.1 09(b)(2)(A)?
c.
Please comment on the feasibility ofundertaking such an effort within the
time frame of a provisional variance.
13
ANSWER:
The response ofaquatic life to provisional variance conditions should be
compared to normal conditions.
The condition in Section 301.1 09(b)(2)(D) is primarily a
notification provision. The activities conducted under the preceding conditions will be
sufficient in most cases to identify unusual responses ofaquatic life to the provisional
variance.
However, this condition requires the provisional variance recipient to
immediately notify the Illinois EPA and DNR when the visual inspection, temperature
monitoring and biological monitoring identify a problem and to keep the agencies
informed regarding the return to normal conditions.
This effort is not intended to occur
before an application is submitted, but during the period forwhich relief has been granted
and for any additional period oftime that may be necessary to recover from any
unforeseen environmental impacts.
20.
Regarding Section
301 .109(b)(2)(D), is this a condition that is currently imposed
in thermal provisional variances?
ANSWER:
Yes.
See,
e.g.,
Commonwealth Edison Company (Dresden Power Station
v.
Illinois EPA, PCB 00-48 (September 23,
1999), PCB 00-18 (August
5,
1999), PCB 99-
39 (September 3,
1998) and PCB 98-20 (July 24. 1997).
21.
Please explain and give examples of what the Agency means by “unusual
conditions.”
ANSWER:
Unusual conditions are conditions not ordinarily observed or explainable
by factors unrelated to the thermal discharge orprovisional variance relief granted.
14
22.
Will
the applicant be required to remedy problems even if the provisional
variance does not cause the problem?
a.
Is there any presumption in the proposed rules that any “unusual
conditions” observed havebeen caused by the provisional variance
discharge unless proven otherwise?
b.
Will the discharger have the burden of proving a lack of causation in order
to be relieved ofan obligation to remedy the problem observed in the
receiving water?
c.
Please expand on what type ofremedy the Agency envisions for specific
possible problems.
ANSWER:
This provision is not intended to require a facility to remedy a problem
that was not caused by the provisional variance or create a presumption that any unusual
conditions are being caused by the relief granted. It is
expected, however, that ifthe
petitioner notices that thermal conditions during the provisional variance period are
causing harm to aquatic life, itwill attempt to
improve the temperature of its effluent to
prevent further environmental harm.
23.
This provision requires applicants to notify the Agency and DNR when normal
conditions return.
What is the basis ofcomparison for determining normal
conditions?
ANSWER:
The basis ofcomparison is those conditions in existence prior to the grant
of the provisional variance relief.
24.
Regarding Section 301.1 09(b)(2)(E), is this a condition that
is currently imposed
in thermal provisional variances?
ANSWER:
The specific language utilized in
this section has not appeared in prior
provisional variances.
Several thermal provisional variances have included a condition
that the petitioner “shall mitigate possible adverse affects” ofthe provisional variance.
15
See, e.g.,
Commonwealth Edison Quad Cities Power Station
v. Illinois EPA, PCB 89-115
(July
13,
1989) and PCB 88-129 (August
18, 1988) and Commonwealth Edison Dresden
Power Station
v. Illinois EPA, PCB 88-128 (August 18,
1988).
25.
Please explain from where the authority to require remediation is
derived.
a.
Who will judge the adequacy of the remediation plan?
b.
By what criteria will this adequacy be judged?
c.
What are the appeal provisions from this condition?
ANSWER:
This provision does not specifically address a discharger’s burdento
remediate environmental harm caused by its discharge. Rather, the provision requires
provisional variance recipients to develop and implement a response and recovery plan to
address any unforeseen environmental harm due to thermal conditions resulting from the
provisional variance relief granted. As with the documentation provision discussed
above, the Illinois EPA will consult with the facility if it feels the plan is inadequate;
however, the Illinois EPA did not contemplate a formal approval or disapproval process
forthe plan required by this provision. No appeal provisions are appropriate from this
provision, because if the Illinois EPA determines that the facility has caused water
pollution or violated the conditions of a provisional variance that has been granted, the
next
step is to evaluate the appropriateness of an enforcement proceeding against the
facility.
26.
Within section 301 .109(b)(2), paragraphs (B), (C) and (D), the proposal would
require an applicant to provide various information to the Illinois Department of
Natural Resources (DNR).
What statutory authority does the Board or Agency
have to require certain reports to be submitted to the DNR?
ANSWER:
The Illinois
EPA has not intended to include
any language that would
conflict with DNR’sstatutory authority.
a.
To whom at the DNR would these be
submitted?
16
ANSWER:
The Illinois EPA has not identified a specific contact at DNR to receive
this information, but the information can be submitted to the Director ofDNR or his
or
her designee.
b.
What actions would the DNR take with respect to these reports?
ANSWER:
The Illinois EPA is not able to
identify how these notifications
will be
handled or reviewed by DNR.
c.
Does the Agency believe that its own review of and determinations
regarding provisional variances have been inadequate to protect aquatic
life?
ANSWER:
No.
d.
Why can the DNR not fill the same role without such inclusion in the
regulation?
ANSWER:
The Illinois EPA
can and will consult with DNR in appropriate cases with
or without this requirement.
e.
Does the inclusion of DNR in this proposal indicate some regulatory or
decision-making authority in this process beyond that which the
Department currently possess?
ANSWER:
No.
In addition to the preceding twenty-six (26) multi-part questions, IERG has requestedthat
the Illinois EPA supplement its answers to two questions presented at the first hearing.
Pursuant
to IERG’s request, theIllinois EPA submits the following supplemental responses:
17
1.
Do you believe the Board has the authority to deny a provisional variance if the
Agency recommends that it be answered
[sic]?
ANSWER:
Under Section
3
5(b)
of the Environmental Protection Act, the Illinois EPA
is assigned the responsibility to determine whether compliance on a short-term basis with
a requirement would cause an arbitrary orunreasonable hardship and notify the Board
when it determines such a hardship exists.
The Board often defines its responsibility
under the Act as to “adopt a formal order,
assure formal maintenance ofthe record,
assure the enforceability of the variance, and provide notification ofthe action by press
release.” Presumably, the Board has some limited jurisdictional authority to deny a
provisional variance if the Agency were
to recommend, for example, that a provisional
variance be granted for greater than
45
days at one time or more than 90 days in a
calendar year.
See,
Mobil Oil v. Illinois EPA, PCB 86-221 (December 23,
1986) and
Union Carbide Corp.
v. Illinois EPA, PCB 86-2 14 (December 18,
1986)(here the Board
refused to grant a provisional variance from the hazardous waste 90-day storage
limitation where a previous 30 day variance had been granted.
In these
cases the Board
was interpreting 35 Ill. Adm. Code 722.134(b) ofthe Board’srules, rather than
Section
35(b)
or 36(c) ofthe Act.)
2.
Ifthe Agency were to
make a recommendation to the Board with conditions, can
the Board grant that provisional variance without those conditions or with
different conditions, or is the Board bound by those conditions?
ANSWER:
The Agency has not had
an
opportunity to consider this issue in practice,
since the Board typically adopts the conditions recommended by the Agency.
Inrare
18
instances in the past, the Board has both added language to provisional variances and
found that they had no authority to add conditions.
Compare,
Department
ofthe Army v
Illinois EPA, PCB 83-109 (August
10,
1983)(Board found conditions Agency set forth
wholly inadequate to protect the environment, but found itdid not have authority to
impose additional conditions) with City ofWenoa v. Illinois EPA, PCB 90-48 (April
12,
1 990)(Board altered a condition imposed by the Agency which the Board found
inconsistent with the
Act).
It appears from these opinions, that the Board acknowledges
the Illinois EPA’s determination regarding thepresence ofan arbitrary or unreasonable
hardship and its judgment regarding the most appropriate conditions to assure protection
ofthe environment as required by the Act.
However, the Board has not included
conditions when it found the Illinois EPA’s condition would be beyond the Illinois EPA’s
authority
under the Act.
WHEREFORE, the Illinois
EPA respectfully submits to the Board these responses to the
questions submitted by IERG on June 13, 2001.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
Ba
DeboiahJ.’\~411iams
Assistant Counsel
Division ofLegal Counsel
DATED:
June 28, 2001
Illinois Environmental Protection Agency
1021
North Grand Avenue East
Post Office Box
19276
Springfield, Illinois
62794-9276
(217)782-5544
19
STATE OF ILLINOIS)
COUNTY OF SANGAMON
)
SS
)
)
PROOF OF SERVICE
I, the undersigned, on oath state that I have served the
attached Answers ofthe Illinois EPA and
Notice upon the
person
to whom it is directed, by placing a copy
in an envelope addressed to:
See attached Service List.
and mailing it from Springfield,
flhlnois on June 28, 2001, with sufficient postage affixed as indicated
above.
SUBSCRIBED AND SWORN TO BEFORE ME
this
28th
day of June 2001.
OFFICiAL
SEAL
CYNTHIA L.
WOLFE
~
NOTARY
PU5UC,
STATE
OF
ILLINOIS
:~ MY
COMMISSION
EXPIRES
3-30-2003
:4.
THIS FlUNG IS SUBMITTED ON RECYCLED PAPER
Service List
June 28, 2091
Dorothy M. Gunn, Clerk
Illinois
Pollution Control Board
James R.
Thompson Center
100 West Randolph Street, Suite
11-500
Chicago, Illinois 60601
(OVERNIGHT MAIL)
Andrew Boron
Hearing Officer
Illinois Pollution
Control Board
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
(OVERNIGHT MAIL)
MarkBiel
Executive Director
Chemical Industry Council ofIllinois
920 South Spring Street
Springfield, Illinois 62704
(FIRST CLASS MAIL)
Debbie Bruce
Illinois Department ofNatural Resources
600 NorthGrand Avenue West
Springfield, Illinois
62701
(FIRST CLASS MAIL)
Joel Cross
Illinois Department ofNatural Resources
600 NorthGrand Avenue West
Springfield, Illinois
62701
(FIRST CLASS MAlL)
Susan Franzetti
Sonneneschein Nath and Rosenthal
8000
Sears Tower
Chicago, Illinois
60606
(FIRST CLASS MAIL)
Lisa Frede
Director ofRegulatory Affairs
Chemical Industry Council ofIllinois
9801 West Higgins Road, Suite
515
Rosemont, Illinois 60018
(FIRST CLASS MAR)
Mike Hooe
Illinois Chapter ofthe American Fisheries Society
416 Briarwood Drive
Salem, Illinois
62881
(FIRST CLASS MAIL)
Robert Lawley
Chief Legal Counsel
Illinois Department ofNaturalResources
524
South Second Street
Springfield,
Illinois
62701-1787
(FIRST CLASS MAR)
Alex Messina
Illinois
Environmental Regulatory Group
215
East Adams Street
Springfield,
Illinois
62701
(FIRST CLASS MAR)
William Murray
Regulatory Affairs Manager
Office ofPublic Utilities
800 East Monroe Street
Springfield,
Illinois
62757
(FIRST CLASS MAR)
David Rieser
Ross and Hardies
150 NorthMichiganAvenue
Chicago, Illinois
60601
(FIRST CLASS MAR)
Jim Smithson
Dynergy
785 West Hickory Point Road
Forsyth, Illinois
62535
(FIRST CLASS MAIL)
Julia Wozniak
Midwest Generation
One Financial Place, 440 South LaSalle, Suite 3500
Chicago, Illinois
60605
(FIRST CLASS MAR)
Stan Yonkauski
Illinois Department of NaturalResources
524
South Second Street
Springfield, Illinois 62701-1787
(FIRST CLASS MAR)
THIS FILING IS SUBMITTED ON RECYCLED PAPER
